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WM Mobile Bay Environmental Center, Inc. v. The City of Mobile Solid Waste Authority

United States District Court, S.D. Alabama, Southern Division

February 24, 2017

WM MOBILE BAY ENVIRONMENTAL CENTER, INC., Plaintiff/Counter Defendant,
v.
THE CITY OF MOBILE SOLID WASTE AUTHORITY, Defendant/Counterclaimant.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.

         This action is before the Court on the Motion for Writ of Replevin and Motion to Hold Defendant in Contempt filed by Plaintiff WM Mobile Bay Environmental Center, Inc. (Plaintiff) (doc. 222) and the Objection and Motion to Dismiss filed by Defendant City of Mobile Solid Waste Authority (the Authority) (doc. 224).

         The Court previously held as a matter of law that the Authority breached the Contract with Plaintiff “by delivering certain City of Mobile waste to the Dirt, Inc. landfill” (doc. 125, p. 32, Order on summary judgment). The Court found that the Contract contained the following provisions:

5.2 Authority's Responsibility. The Authority agrees to assist the Contractor in obtaining any and all permits, licenses, and approvals necessary to open and operate the New Landfill and, once the New Landfill has been opened, to dispose at the New Landfill of all the City of Mobile Solid Waste generated within the Service Area.
1.32 Mobile Solid Waste Stream. . . . During the term hereof, the Authority agrees to have delivered all Mobile Solid Waste Stream only to the Landfill or the Transfer Station and to no other sites, for disposal by Contractor.

(Doc. 125, citing Doc. 29-1, Section 5.2; Section 1.32).

         Based upon these provisions, as well as the definitions of waste and refuse found in the Contract, the Court determined that the “force and effect of Section 5.2 and Section 1.32 is that SWA has breached the Contract by delivering certain City of Mobile waste to the Dirt, Inc. landfill.” (Doc. 125, p. 32) The Court reserved the issue of damages for trial (id.) and the jury awarded Plaintiff $3, 000, 000.00 (doc. 171-1, Verdict). The Court entered judgment in favor of Plaintiff (doc. 173). After addressing several post-trial motions, the Court entered an amended judgment as to other counts in the second amended complaint, but specifically stated that all provisions of the earlier judgment would remain in effect (doc. 204). The judgments were affirmed on appeal (doc. 221). The judgments are money judgments in that they adjudge the jury's award of money damages to Plaintiff. The Court did not make any declaratory judgment as to any future issues of whether the Authority had the right to possession or title of the City of Mobile solid waste stream.

         Relying upon Rule 64 of the Federal Rules of Civil Procedure, Plaintiff moves the Court to issue a Writ of Replevin to the Authority for possession of the entire City of Mobile's solid waste stream. Plaintiff alleges that the Authority continues to divert part of the solid waste stream to another landfill. Plaintiff argues that the City's “Solid Waste Steam is tangible property in the possession of the Authority to which [Plaintiff] has an immediate right … pursuant to the parties' Contract, and that is subject to replevin, pursuant to Federal Rule of Civil Procedure 64.” (Doc. 222, p. 2) In support, Plaintiff provides the Affidavit of its Vice President and a copy of the letter demanding possession (doc. 222-1, doc. 222-2). According to the proposed Writ of Replevin, the U.S. Marshal would be directed to take possession of the City's entire solid waste stream and deliver it to the Plaintiff (doc. 222, doc. 222-3).

         In response, the Authority raises three arguments. First, the Authority argues that the Court did not order prospective relief from any future acts that may be a breach of contract, but instead the Plaintiff was awarded damages based upon allegations of past breach of contract. Second, the Authority argues that relief under Rule 64 is not available because the action has concluded. The Authority asserts that the relief sought should be obtained through a new action for execution of a judgment instead of a post-judgment motion. The Authority points out that Plaintiff “does not seek to secure the satisfaction of a potential judgment” as contemplated in Rule 64. Last, the Authority argues that Plaintiff cannot meet the necessary elements of an action for replevin because it cannot show that it first had possession of the solid waste stream and that the Authority now has possession. The Court agrees to each point.

         Rule 64 provides that at the “commencement of and throughout an action” state law remedies are available for seizure of “property to secure satisfaction of the potential judgment”. Fed.R.Civ.P. 64(a) (emphasis added). Overall, Rule 64 codifies “long-settled federal law providing that in all cases in federal court, whether or not removed from state court, state law is incorporated to determine the availability of prejudgment remedies for the seizure of person or property to secure satisfaction of the judgment ultimately entered.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto. Truck Drivers, Local No. 70 of Alameda Co., 415 U.S. 423, 436 n.10, 94 S.Ct. 1113 (1974) (emphasis added). Replevin is a remedy specifically listed in Fed.R.Civ.P. 64(b). The Rule states in relevant part that “[t]he remedies available under this rule include [replevin] … however designated and regardless of whether state procedure requires an independent action[.]” Fed.R.Civ.P. 64(b). At least one federal court has interpreted Rule 64(b) to mean that replevin is available as a remedy in an action even though state procedures may require an independent action. Fed.R.Civ.P. 64(b). See Regions Commercial Equip. Fin., LLC v. Performance Aviation, LLC, 2017 WL 354275, at *5 (S.D.Miss. Jan. 24, 2017) (Regions filed a verified second amended complaint, which contained a specific claim for replevin).

         Federal Rule 64 requires the application of state procedures to enforce the remedies available. In that regard, Ala. R. Civ. P. 64(a) states that “[a]t the commencement of and during the course of an action, all remedies providing for seizure of … property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by law except that there can be no seizure of property through judicial process prior to the entry of judgment other than by a judicial officer acting pursuant to the procedure set forth in paragraph (b)[.]” Ala. R. Civ. P. 64(a) (emphasis added). Paragraph (b) sets out the procedure to follow “[w]henever any provision of law is invoked through which there is an attempt to seize property through judicial process prior to the entry of judgment[.]” Fed.R.Civ.P. 64(b) (emphasis added).

         Both Rules address pre-judgment seizure of property for satisfaction of a potential judgment to be entered in the action. That is not the case before the Court. Judgment has been entered. Plaintiff has filed a post-judgment motion for Writ of Replevin, which appears contrary to these Rules. Plaintiff has not provided any case law to show that even though the Rules indicate that the Writ of Replevin is available pre-judgment, the Writ is also available post-judgment.

         Additionally, assuming for purpose of this motion that Plaintiff may bring a post-judgment motion, Ala. R. Civ. P. 64(b)(1) requires that an application for Writ of Replevin should be made by an affidavit that contains

(A) Description of Property. A description of the claimed property that is sufficient to identify the ...

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